FEDERAL COURT OF AUSTRALIA

ALZ15 v Minister for Immigration and Border Protection [2017] FCA 279

ORDERS

THE COURT ORDERS THAT:

1.    Leave be granted to the appellant to rely on Ground 1 of the amended notice of appeal filed on 2 March 2017.

2.    Leave be refused to the appellant to rely on Grounds 2 and 3 of the amended notice of appeal filed on 2 March 2017.

3.    The appeal be dismissed.

4.    The appellant pay the respondents’ costs of the appeal, to be fixed in a lump sum by order of the Court.

THE COURT DIRECTS THAT:

5.    On or before 4 pm on 4 April 2017, the first respondent file and serve an affidavit constituting a Costs Summary in accordance with paragraphs 4.10 to 4.12 of the Court’s Costs Practice Note (GPN-COSTS) dated 25 October 2016.

6.    On or before 4 pm on 18 April 2017, the applicant file and serve any Costs Response in accordance with paragraphs 4.13 and 4.14 of the Costs Practice Note (GPN-COSTS).

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

MORTIMER J:

1    This appeal concerns the same circumstances as those considered by the High Court in Minister for Immigration and Border Protection v SZSSJ [2016] HCA 29; 90 ALJR 901 (SZSSJ): namely a person whose identifying details were unintentionally released onto the internet for a period of 14 days in February 2014, by the Department of Immigration and Border Protection’s publication of a report. Those persons affected were all in immigration detention at the time.

2    The appellant challenges the findings of what was called an “International Treaties Obligation Assessment” (ITOA), undertaken to assess the effect of publication on Australia's non-refoulement obligations with respect to the appellant. The same process was undertaken for all persons affected by the publication. The appellant challenged the findings on judicial review in the Federal Circuit Court, which held that it had jurisdiction to consider the matter. The Minister has not challenged this finding on appeal, given the High Court’s decision in SZSSJ. The appellant’s challenge was unsuccessful and he now appeals to this Court.

3    By way of a general observation, it is apparent that the appellant has received some assistance at various stages of his claims. I do not suggest there is anything inappropriate about that occurring, however I feel it is necessary to make it clear that I have proceeded on the basis he has had such assistance. The appellant does not have functional English and required an interpreter in the hearing before me. His communications with the Department were clearly not drafted by him. Both the original and amended notice of appeal filed in this proceeding were drafted by a person or persons with some familiarity about the nature and content of judicial review. It appears the same was true of his judicial review application in the Federal Circuit Court. The appellant informed the Court during the appeal hearing that he had received assistance, and responsibly accepted that he was not able to say anything further about the grounds of appeal because he did not really understand what had been written in those documents. This explains why, although the written documents would suggest some substantive submissions might have been forthcoming from the appellant at the hearing, this was not in fact the case.

4    For the reasons I set out below, his appeal must be dismissed.

Background

5    The appellant has made two previous unsuccessful applications for protection visas. The last was in June 2013. It was refused, and that decision was affirmed on review by the Refugee Review Tribunal (RRT) on 20 January 2014. The appellant sought judicial review through the Federal Circuit Court and then on an application for leave to appeal to this Court but was unsuccessful: see SZTGV v Minister for Immigration & Border Protection [2015] FCAFC 3.

6    While he was undertaking judicial review, the publication to which I have referred above at [1] occurred, in February 2014. How the publication occurred is set out in SZSSJ at [3]-[7].

7    A letter from the Secretary of the Department dated 12 March 2014 informed the appellant about the publication, in substantively the same terms as the letter sent to the appellant in SZSSJ, assuring him that the “implications for you personally” will be assessed by the Department “as part of its normal processes”. In fact, rather than any “normal process”, what occurred was that all those affected were given special access to a further protection obligations assessment, namely the ITOA to which I referred in [1] above. Notification of this process to the appellant took some time. He was not informed about the ITOA process until February 2015, a year after the publication. Counsel for the Minister accepted there was no evidence before the Court about why it took a year before the appellant was notified of the ITOA process. The appellant remained in immigration detention for all this time: so much is apparent from the affidavit he filed on this appeal, dated 7 August 2015, in which he gave his address as Villawood Immigration Detention Centre. After an event such as the public release of his personal identifying information, it seems extraordinary for the appellant to be detained for an entire year with no progress at all in addressing the consequences of such a disclosure for him.

8    By that correspondence in February 2015, the appellant was told about the ITOA and that its purpose was to assess the effect of the publication on Australia’s non-refoulement obligations with respect to him. He was told that information he had already provided would be taken into account in the ITOA, and he was invited to provide any further information within 14 days of receiving the letter.

9    The appellant provided a response by email. In this document the appellant made six points:

1.    The DIBP possesses all the information in relation to the data breach, in particular the unabridged report from KPMG which provides details such as IP addresses and number of accesses to the information;

2.    On page 2 of your letter you mention that that I will receive procedural fairness during the ITOA process. I respectfully submit that procedural fairness is more than just putting adverse material for comment. On the contrary natural justice and procedural fairness or the “fair hearing” rule requires that all relevant information be provided before preparation of a reply. I cannot effectively and competently prepare my claim with respect to the data breach that I am a refugee sur place without having access to that information. I respectfully submit that to deny me access to the information held by DIBP is a breach of natural justice and procedural fairness;

3.    If DIBP will not give me access to the information then the only course of action open to you is to recognise me as a refugee sur place;

4.    Your employer, DIBP breached s336E of the Act in disclosing my name and personal details on the Internet. The breach is a criminal act. Complaints have been made to the Australian Federal Police (AFP) and the Office of the Australian Information Commissioner (OAIC). The applicant’s OAIC complaint reference no.: [redacted].

5.    The AFP is awaiting the outcome of the Privacy Commissioner complaint and court matters SZSSJ and SZTXY before commencing its own investigation; and

6.    An opportunity to be heard by an “impartial decision maker” is at the heart of natural justice and procedural fairness. Your employer, DIBP has placed you as the decision maker in a position of conflict of interest. You are required to make a decision on whether there is a real chance that I will face serious or significant harm upon return to Thailand due to my name and personal details being placed on the Internet by your employer. You cannot undertake this assessment without having full disclosure of the information that is in the possession of your employer to you and I cannot make any submissions without full disclosure of this information to me. Can you be an impartial decision maker and make a decision adverse to your employer? If you make a decision adverse to me without disclosing any information in relation to the data breach then you have breached the rules of natural justice and procedural fairness. Therefore, I respectfully submit that the only decision is open to you is to find that I am a refugee sur place.

10    I accept the Minister’s submission this email appears to have been sent around 19 February 2015.

11    The officer assigned to conduct the ITOA, Ms Fernandes, wrote to the appellant on 17 March 2015. This is how she described what the assessment would involve:

This ITOA will assess whether there are any non-refoulement concerns which would prevent the department from progressing removal arrangements in your case. This ITOA will only address claims and country information which have not previously been addressed in any prior protection obligations assessment which the department has undertaken.

12    This letter addressed the points the appellant had raised in his email about procedural fairness, conflict of interest, the outcome of the appellant’s claims for protection and what was disclosed in the February 2014 publication. The letter also contained some matters under a heading “Adverse inferences which may be drawn”. In this section, Ms Fernandes directly addressed the claim made by the appellant in his 19 February 2015 email that he would face harm at the hands of the Thai authorities because of the website publication. She continued:

The evidence before the department appears to indicate that you were not of interest to the Thailand authorities prior to your departure from Thailand and that you do not have an adverse profile with the Thailand authorities which could potentially expose you to a real chance of serious harm or real risk of significant harm on return to your country of origin.

13    Ms Fernandes went on to reproduce the findings made by the RRT on the appellant’s review, all of which were to the effect that any consequences which might befall the appellant would be as a result of Thai laws of general application, without any discriminatory treatment and that there was no risk of serious harm to the appellant in being detained in Thai prisons. She concluded:

There is no evidence before the department to indicate that there has been any change in your circumstances or country of origin information since your previous protection claims were assessed.

…

I am unable to locate any country of origin information that supports the conclusion that these organisations would find the information released on the department’s website valuable and usable or that they would use such information to target and harm you.

14    I note, as the Minister submitted, that this letter contained similar material to that sent to the individual claimant in SZTZI (the second appeal heard with SZSSJ), to which the High Court referred in SZSSJ at [26].

15    In particular it is worth noting the feature of the correspondence which was noted by the High Court: namely that officers such as Ms Fernandes were instructed to assume (favourably to the individual claimants) that a person’s personal information may have been accessed by authorities in the country in which person feared persecution or other relevant harm.

16    The appellant did not provide any response to Ms Fernandes’ letter. Ms Fernandes proceeded to make her assessment. By a document dated 13 April 2015 Ms Fernandes notified the appellant of the outcome of that assessment. Ms Fernandes found that Australia did not have non-refoulement obligations to the appellant. The last page of the document indicates that the Manager of IMA Protection in New South Wales agreed with the assessment, although the agreement is dated the same day as the assessment and it is unclear what process was undertaken before the Manager indicated agreement.

17    It is unnecessary to go through the ITOA reasons in detail, although the following aspects should be noted. Under the heading “Findings of Fact (Credibility)”, Ms Fernandes found there was no evidence to indicate there had been any change in the appellant’s circumstances since his protection claims were assessed and therefore the RRT’s findings on those claims remained “valid and effective”. I assume Ms Fernandes was using this phrase as a shorthand way of saying there was no basis for her to need to revisit those findings on their merits since the underlying sub-stratum of fact was not asserted to have changed, rather than pronouncing upon the legal validity or effectiveness of those findings, which would not be a matter for her.

18    Ms Fernandes then addressed the appellant’s arguments about procedural fairness and conflict of interest that he had raised in his 19 February 2015 email.

19    Thereafter she turned to what I later explain is the second, and most critical of her two tasks: to assess the effect of the website publication of the appellant’s personal information on the website on what might happen to the appellant were he to be returned to Thailand. She did so under four headings: “Fear of being targeted and harmed by the Thai authorities as a consequence of the website disclosure”; “Fear of being targeted and harmed by foreign security and intelligence agencies, terrorist organisations and criminal syndicates”; “Fear of being denied employment as a consequence of the website disclosure”; and “Denial of visas for travel”. She then also dealt with the appellant’s claim to be a refugee “sur place”. After considering these matters, Ms Fernandes reached a conclusion on Australia’s non-refoulement obligations under the Refugees Convention (Convention Relating to the Status of Refugees, done at Geneva on 28 July 1951, as amended by the Protocol Relating to the Status of Refugees, done at New York on 31 January 1967) (in Part B of the document) and under the ICCPR (International Covenant on Civil and Political Rights, opened for signature 19 December 1996, 999 UNTS 171; 6 ILM 386 (entered into force 23 March 1976)) and CAT (Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10 December 1984, 1465 UNTS 85; 23 ILM 1027 (entered into force 26 June 1987)) (in Part C of the document).

20    The appellant sought judicial review of Ms Fernandes’ decision in the Federal Circuit Court. Although the decision records the appellant as appearing in person, it is clear from the grounds as expressed in the Federal Circuit Court decision that the appellant had some assistance in formulating his grounds of review.

21    The Federal Circuit Court decision was handed down prior to the High Court’s decision in SZSSJ. Thus it considered in some detail the Federal Circuit Court’s jurisdiction to deal with applications of this kind, a matter settled in favour of jurisdiction by the High Court in SZSSJ. Aside from the jurisdiction question, there were 16 grounds of review raised and the learned Federal Circuit Court Judge dealt with each of them. In relation to grounds alleging denial of procedural fairness, the Federal Circuit Court dealt with these on a substantive basis, while acknowledging the Minister’s arguments that no duty to afford procedural fairness was owed. In SZSSJ the High Court found a duty of procedural fairness was owed: see [2].

22    That application was dismissed by the Federal Circuit Court on 17 July 2015, and from that decision the appellant appeals to this Court.

The grounds of appeal

23    The appellant initially filed a notice of appeal containing two grounds of appeal. It was also obviously drafted by someone other than the appellant.

24    Then, shortly before the appeal was due to be heard, he filed an amended notice of appeal. He also filed six pages of written submissions in support of being granted leave to rely on his amended notice of appeal. It is clear neither document was drafted by the appellant, and he admitted this during the appeal hearing. Nevertheless, the submissions were filed with his consent and on his behalf, and I have considered them.

25    The amended notice of appeal raises three new grounds of appeal. Ground 1 relies, in substance, on matters raised in a decision of Judge Street in the Federal Circuit Court: SZUBX v Minister for Immigration & Anor [2015] FCCA 2822 (SZUBX). Judge Street’s decision was favourable to the applicant in that case and set aside the ITOA which was under review. The Minister’s counsel informed the Court there was no appeal from Judge Street’s decision.

26    Grounds 2 and 3 raise procedural fairness arguments about the conduct of the ITOA which are differently expressed to the original two grounds of appeal, although those two grounds also raised procedural fairness arguments.

27    The Minister opposed leave being granted, not because of any prejudice to the Minister but because the grounds of appeal lacked merit. That was a robust submission, because the first ground relies upon Judge Street’s decision which, on its face, could assist the appellant in advancing a successful argument in his own appeal. As the Minister submitted, there is a decision of this Court (Markovic J, sitting as the Full Court, in AKD15 v Minister for Immigration and Border Protection [2017] FCA 166 (AKD15)) which distinguishes Judge Street’s decision in SZUBX, but nevertheless Street J’s decision remains.

28    When I asked him, the appellant indicated that he wished to rely on his amended grounds rather than his original grounds and although it is clear someone else drafted the documents, on my assessment this was an informed choice by the appellant: he has obviously had some discussions with whomever is advising him and has elected to rely on these new grounds.

29    I consider it is in the interests of the administration of justice in this appeal that leave be granted to the appellant to rely on the first amended ground of appeal. There is no prejudice to the Minster, and indeed the Minister’s counsel ably presented the Minister’s response to the first amended ground of appeal in some detail both orally and in writing. Although the ground is new, it arises from a decision of the Federal Circuit Court (SZUBX), made after the decision from which this appeal is brought, and not directly affected by the High Court’s decision in SZSSJ. Markovic J did not determine that SZUBX was wrongly decided, only that on the appeal before her Honour, it could be distinguished. The matter raised by the appellant is arguable. Although there is no evidence to this effect, I am prepared to infer that whoever is assisting the appellant has identified this argument rather late in the piece and, shortly before the appellant’s appeal, has assisted the appellant to raise it.

30    In circumstances where there is no general scheme of legal assistance available to a person in the appellant’s position, and where persons such as the appellant must navigate their way through a legally and procedurally complex system without functional English and without any real understanding of the Australian legal system or Australian law, if there are people prepared to assist such individuals to raise an argument which is not fanciful and has some reasonable legal basis, in my opinion it is in the interests of the administration of justice, and the affording of a fair process to persons in the appellant’s position, that such arguments are considered by the Court. Ultimately, this Court’s function on appeal from a decision invoking the supervisory jurisdiction of this Court and of the Federal Circuit Court is to ensure that an administrative decision affecting the rights and interests of an individual (including her or his liberty) is made in accordance with Australian law and by a fair process.

31    The remaining two grounds of appeal in the amended notice of appeal are not arguable, and I do not propose to grant leave to the appellant to raise them.

32    Proposed ground 2 deals with what the High Court said in SZSSJ at [91], which states:

Sensibly interpreted and applied in the context of making an assessment of whether the Data Breach engaged Australia’s non-refoulement obligations with respect to them, the assumption was not simply that some of their personal information might have been accessed by some authorities. The assumption was rather that all of their persons or entities from whom they feared persecution or other relevant harm. That is how the assumption was in fact interpreted and applied by the officer who conducted SZTZI’s ITOA and how it could reasonably be expected to be interpreted and applied in the conduct of SZSSJ’s ITOA.

33    Proposed ground 2 contends that the “may” test applied by Ms Fernandes is inconsistent with this passage, and means Ms Fernandes did not warn the appellant she would “not apply the assumption that all of the appellant’s personal information had been accessed by all the persons or entities from whom [he] feared persecution”. It is clear from p 5 of Ms Fernandes’ reasons, where she sets out the assumptions she was instructed to make, that she did make an assumption favourable to the appellant that Thai authorities may have had access to the published information and the appellant’s claims would be assessed on this basis. That is consistent with the assumption as construed in [91] of SZSSJ.

34    Ground 3 is also not arguable in my view. It concerns whether, as a matter of procedural fairness, Ms Fernandes should have given the appellant the personal information about him which was published on the website, in particular the information that the appellant “held an Australian Visitor visa and he is now an “overstayer” in Australia (this is listed as the reason for his unlawful status)”.

35    It is unarguable that the appellant had been given this information about him, as part of what was published. Ms Fernandes, in her letter of 17 March 2015, told the appellant:

The list of detainees inadvertently published by the department in February 2014 indicates that you were in Australia on a Visitor visa and states that you are an ‘over-stayer’ (this is listed as the reason for your unlawful status).

36    There is no justification to grant leave on the second and third grounds in the amended notice of appeal.

37    Since the appellant consciously elected, I have found, to rely on this new notice of appeal, I do not propose to consider in detail the two grounds in his original notice of appeal. However, I accept the Minister’s submission that both are foreclosed by the High Court’s decision in SZJSS.

Resolution

38    Accordingly, I turn to consider the merits of Ground 1 in the amended notice of appeal.

39    The appellant, as I have noted, was unable to develop any substantive submissions about this ground, although he did observe it seemed unfair that in a group of people who were all affected by the disclosure of their personal information by the Department, some could succeed in having their ITOA overturned (for example, the applicant in SZUBX) and some could not (for example, the appellant in AKD15). As I explained to him, and as will become apparent in my reasoning on this ground of appeal, the difference largely turns on the particular reasons given by each decision-maker in the ITOA assessment.

40    Before I consider the ground in detail, a preliminary point must be emphasised about the nature of the task carried out in the ITOA. The Minister’s counsel correctly accepted that the task had two limbs, and this was expressly identified to the appellant in correspondence prior to Ms Fernandes’ decision.

41    In the letter dated 18 February 2015 to the appellant, a different officer made it clear to the appellant that:

The reason the department has commenced this ITOA is that some of your personal information was included in a routine report released on the department’s website unintentionally enabling access to personal information about people who were in immigration detention on 31 January 2014. Any protection claims you may have in relation to this breach of your personal data will now be assessed through this ITOA.

…

This ITOA will consider Australia’s non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and the International Covenant on Civil and Political Rights and its Second Optional Protocol.

…

This process will also consider new information, changes in your circumstances, or your country of nationality or former habitual residence since your previous protection claims were assessed.

42    Thus, as the Minister’s counsel correctly accepted, there were two tasks for the ITOA. The first was to determine whether there were any changes in the appellant’s circumstances since the determination of his protection claims which might give rise to protection obligations under either the Refugees Convention or the ICCPR or CAT. This was a broad assessment, not limited to any risks arising from the publication of his personal information. Second, the ITOA had to determine whether the publication of his personal information gave rise to any risks of harm should he return to Thailand, whether those risks arose because of a Convention reason or were risks of harm that reached the thresholds set by the ICCPR and CAT.

43    The second task was clearly the principal focus of the ITOA, as it was a possible consequence of the publication of personal information of all those detainees affected by the disclosure on the Department’s website in February 2014. The first task was nonetheless a real one, but in the absence of any material change in circumstances for a given individual, was not likely to result in a favourable ITOA. The fact that there were two tasks should be borne in mind when considering the first ground of appeal. It is also possible that the first task might inform the second task, in the sense of contributing to the way the decision-maker assesses any risks of harm said to flow from the publication.

44    In SZUBX, the error in the ITOA identified by Street J was that the ITOA assessor had denied the applicant procedural fairness because what he had invited the applicant to address was whether the findings previously made by the refugee status assessment (RSA) and the independent merits review (IMR) decision-makers on the applicant’s protection claims were correct. At [13]-[14] Street J said:

As a matter of law, that is not a correct focus in relation to whether Australia has any non-refoulement obligation in relation to the applicant. Moreover, to conduct the ITOA interview on the basis that is an opportunity for the applicant to explain why he disagrees with findings of previous officers clearly deflects from assessment of the claims and fears of the applicant in respect of the issue of non-refoulement.

Whilst it was perfectly permissible for the assessor to focus upon the underlying reasoning of earlier findings, or indeed to raise an earlier finding in the process of addressing the underlying reasoning, it was not relevant to the assessment of whether Australia owed the applicant a non-refoulement obligation to ascertain why the applicant disagreed with the findings of previous officers.

45    Street J then went through, sequentially, the findings made by the ITOA assessor to demonstrate that what had occurred was a putting of the previous findings by the RSA and IMR to the applicant.

46    His Honour concluded at [19] and [21]:

It does appear to be the case that the assessor treated that interview as an opportunity to put to the applicant adverse findings of previous officers, and invite the applicant to explain why he disagreed with those adverse findings.

…

[this approach] reveals the over-focus and anchoring effect in the present case by the assessor to a task of seeking explanation on adverse findings that was not the correct task that the assessor was required to undertake in determining whether Australia owed the applicant non-refoulement obligation.

47    In AKD15, Markovic J considered the decision in SZUBX but, in relation to the ITOA assessment before her Honour, reached a different conclusion. Her Honour’s conclusion, if I might say with respect, was correctly based on a close consideration of the ITOA reasons before her, in the terms in which they were expressed. As I said to the appellant at the appeal hearing, it must be the case that arguments of this kind invariably depend on what the decision-maker has actually said in the assessment reasons.

48    As the Minister submitted, there was no interview conducted by Ms Fernandes with the appellant, unlike SZUBX. In that sense, Ms Fernandes’ attention could not have been “deflected” in terms of what she asked the appellant about, because she did not ask him about anything. More importantly, I do not consider Ms Fernandes’ attention was deflected at all in the way Street J identified in SZUBX, based on her reasons. As Markovic J observed in AKD15 in relation to the ITOA reasons before her Honour, there is nothing impermissible in an ITOA decision-maker looking at the evidence which was before a previous tribunal or decision-maker on an applicant’s protection claims in order to decide whether there was a change in the applicant’s circumstances since her or his protection claims were assessed.

49    That is all Ms Fernandes did. In the part of her reasons where she deals with whether the appellant’s circumstances have changed since his protection claims were assessed (what I have described as the first task in the ITOA), all she does at pp 6 to 7 of her reasons is to look at the evidence in the Department’s possession. Reading her reasons fairly, as I have said at [17] above, her description of the RRT’s findings as “valid and effective” should be seen as a shorthand for saying there was no basis for her to revisit those findings on their merits since the underlying sub-stratum of fact was not asserted to have changed. It may be that better descriptions could be employed than “valid and effective” but any debate about terminology is insufficient to identify jurisdictional error in what Ms Fernandes did.

50    More importantly, on the second task, which was clearly the principal task, Ms Fernandes properly considered the evidence and material before her, and reached her own conclusion on the likely effect, or as she found, lack of likely effect, of the website publication on any risk of harm he faced on return to Thailand. She did so under the four headings I have referred to earlier in these reasons (see [19] above)

51    There is also nothing impermissible (subject to procedural fairness) in an ITOA decision-maker using the evidence before a previous tribunal or decision-maker on an applicant’s protection claims as part of the factual matrix to determine what risks of harm might be faced by an individual on return to her or his country of nationality because of the publication of her or his personal information on the Department’s website. Where the findings of a previous decision-maker on an individual’s protection claims have not been set aside, I also see nothing impermissible in an ITOA relying on those findings as part of the factual matrix to be used in deciding what risks are faced, or are not faced, by an individual whose personal information had been published. That is what Ms Fernandes did at p 8 of the ITOA reasons where she set out, in five dot points, the findings of the RRT about the appellant. They were:

•    Any penalty the claimant may face would be pursuant to the law of general application and would not amount to Convention-related persecution.

•    The claimant would not be subjected to any additional serious harm amounting to persecution during the course of any punishment imposed as a legal consequence of his actions.

•    The laws regarding the use of false identity documents are not applied or enforced in Thailand in a discriminatory way for a Convention reason, as they apply to everyone who breaks the law.

•    The claimant would not suffer serious harm in detention because of his sexual orientation or for any other reason.

•    The lawful sanctions that may be imposed on the claimant do not meet the requisite level of severity to constitute torture, cruel or inhuman treatment or punishment or degrading treating or punishment as defined in the Migration Act.

52     Ms Fernandes then concluded:

I have been unable to find any country of origin information that indicates that a person in the claimant’s particular situation would have a profile that could potentially cause him to be subjected to a real chance of serious harm or a real risk of significant harm at the hands of the Thai authorities for having overstayed a visa in Australia.

53    This approach did not suffer from the error identified by Street J. Ms Fernandes was not focusing on the RRT findings and simply using those as a reason to decide that the appellant faced no risk of harm in Thailand because of the public disclosure of his personal information. Rather, she was relying on those findings as indicating the circumstances which would face the appellant on his return to Thailand, as they had been found to be. This is, expressly, what she had given the appellant an opportunity to comment on and respond to, in her letter of 17 March 2015, as I have set out at [12] above. Ms Fernandes fulfilled her obligations of procedural fairness to the appellant in this way. The appellant did not respond to Ms Fernandes’ invitation to provide any comments or further information.

Conclusion

54    It follows that Ground 1 of the amended notice of appeal should be rejected. Ms Fernandes did not make the error identified by Street J in SZUBX, even if (as the Minister accepted it was appropriate to do) the Court assumes the error identified was a jurisdictional error. That conclusion relieves me of the task of determining whether the error identified by Street J is properly characterised as a jurisdictional error in an ITOA. If the Minister wishes to submit otherwise, that question can be left for another day.

55    The appeal must be dismissed. There is no legal basis to refrain from making a costs order against the appellant. However, the Court’s practice now is to award costs by way of a lump sum wherever that is appropriate: see [3.5] and [4.1] of the Court’s Costs Practice Note (GPN-COSTS) dated 25 October 2016. I consider it is appropriate for a lump sum costs order to be made in this case and I propose to give a direction to the first respondent to prepare a Costs Summary in accordance with [4.10] to [4.12] of the Costs Practice Note.

Associate:

Dated:    21 March 2017